The Very Mild Fallout from the NYT Expose on US Drone Strikes

by Julian Ku

Will there be a serious legal blowback to the NYT’s article on US Drone Strike war, detailing President Obama’s personal involvement in the “kill list”? The Iranian propaganda machine is already revving up its engines, but is there going to be a more serious legal and moral reaction akin to the Bush Administration’s war on terror interrogation and surveillance policies?

To be sure, there have been some severe criticisms from the international law academy. Most notably, Prof. Mary Ellen O’Connell of Notre Dame has been the leading academic international law critic of the policy outside of Afghanistan and Iraq. Glenn Greenawald has been consistently critical in his public writings, and the libertarian right is beginning to stir as well. But I somehow doubt professors will sign letters seeking to disinvite the President from visits to their universities, etc. in the same way they did against President Bush.

For the most part, the commentary on the NYT piece has been largely political and not legal. Conservatives like my friend John Yoo are concerned that the policy is being micromanaged from the White House, and hence it is unlikely to be very effective. Leading human rights groups like Human Rights First have been measured, raising questions about the policy’s execution but not taking a wholesale critical approach.

All of this discussion is old news to Opinio Juris readers, who have followed the legal issues related to drone strikes (mostly by Ken and Kevin) for years. But the article, and the relatively mild fallout, suggests to me that the legal framework for the US war on terrorism is becoming increasingly solid. I don’t see any evidence that the President will back off his current approach, and if he is not re-elected, just wait for the inevitable flood of “Even President Obama authorized this…” statements that will emanate from a Romney Administration.

5 Responses

Drone strikes may be murder. Even John Rizzo, former Acting General Counsel of the CIA said it quite candidly. Does not matter if there are 77 angels on a pinhead authorizing it in those circumstances. I suspect the proportionality analysis is very skewed.

Best,
Ben

5.31.2012
at 7:10 pm EST Benjamin G. Davis

Julian, with all due respect, I think it is too far a stretch to say that the critique brought about in two days since the NYT article shows only a mild fallout and because some of the commentary is policy-based rather than legal in nature, you have reason to believe that the administration’s policy is gaining legal ground. Rona and Eviatar have written a concise piece in Foreign Policy detailing the problems regarding the killing list as well as how the Obama administration’s approach does not align with international legal standards. Kucinich and ten members of the US House asked yesterday for accountability in response to the article.

I think we can expect to see a great deal of this critique, legal analysis and demands for accountability streaming in in the coming days, weeks and months leading up to the elections, especially with respect to the chilling notion that the administration has redefined the long-established concepts of combatant and imminence in its dispute with al-Qaeda.

if kucinich is the lead congressional critic, we can infer that criticism of the program is mild indeed.

6.01.2012
at 7:16 am EST jpe

And from what I’ve heard, the issue is now getting a lot of coverage accross the pond, particularly in U.K. – plus, it does reduce the credibility of those academics and others who were absolutely unwilling to consider the evidence of civilian casualties as credible; for example, I was on an Al Jazeera show a few days back where Christine Fair was absolutely refusing to accept that there have been *any* civilian casualties of drone strikes because her ‘sources’ told her so. She rubbished the reports of the BIJ, New America Foundation and anyone else as using flawed methodology to count civilian casualties but was saying the USG methodology is sound – we all know how sound that appears now…

6.01.2012
at 9:39 am EST Dawood I. Ahmed

Response…
Comparing the admitted Bush-Cheney “program” of international crimes of secret detention; unlawful transfer of non-pow detainees outside of occupied territory for torture, cruel, or inhuman treatment; and “coercive” or “tough” interrogation such as waterboarding (which some 27 U.S. cases and 7 U.S. Dep’t of State Human Rights Country Reports as well as decisions of international courts had already recognized constitutes “torture” — and if not torture, it was cruel treatment, and if not cruel treatment it was inhumane treatment, any one of which is a war crime, violation of the CAT, violation of human rights law, etc.) to President Obama’s lawful use of force in self-defense against those who continually engage in armed attacks on the United States, its embassies, its military and other nationals abroad, is outrageous!
“Readers” here know that the vast majority of textwriters recognize the lawfulness of selective self-defense targetings that conform to the principles of reasonable necessity, distinction, and proportionality — and that drone targetings have become far more accurate with less incidental loss of civilian life than with more conventional and otherwise lawful methods and means. http://ssrn.com/abstract=1520717
Mary Ellen’s important points for the future include: (1) who should be flying the drones (U.S. military or CIA personnel)?, and (2) in the future, should we regulate fully automated drones (that engage in targetings without “a human in the loop”).
p.s. the President does not need special congressional approval to engage in lawful measues of self-defense under U.N. art. 51 — see, e.g., http://ssrn.com/abstract=2061835

6.01.2012
at 1:45 pm EST Jordan

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